LEGAL ACTION THREATENED TO BLOCK IRAQ WAR

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OSLO, Jan 1 2003 (IPS) - While the Bush administration was boasting recently that other countries will join a war against Iraq, fast increasing majorities in Britain and much of the rest of the world were telling their governments not to do so, writes Fredrik S. Heffermehl, Norwegian lawyer, International Peace Bureau consultant, and author of \’\’Peace is Possible\’\’. In this article for IPS, the author writes that several governments have even been threatened with legal action to stop them from taking any part in the US war. Notice of legal action was served upon the prime ministers of Britain and Canada last week, warning government officials to respect the 1998 Rome Treaty or face prosecution before the new International Criminal Court. Bush may face his toughest challenge at home if anyone in Congress accepts an offer from international law professor Francis Boyle to assist in impeaching the president for unlawful threats. \’\’The Bush doctrine of pre-emptive warfare or pre-emptive attack in alleged self-defence was rejected soundly in 1945 in the Nuremberg Judgment, \’\’ Boyle says. The strong prohibition against power between nations has taken centuries to establish. The purpose of the UN is to avoid wars and the power to veto military action is an intentional component of its design. No state can claim a right to attack because it finds that the Security Council has proved unable to act, Heffermehl writes.

While the Bush administration was boasting recently that other countries will join a war against Iraq, fast increasing majorities in Britain and much of the rest of the world were telling their governments not to do so. Several governments have even been threatened with legal action to stop them from taking any part in the US war.

In Norway, an attorney acting for the peace movement has warned Prime Minister Kjell Magne Bondevik that the organisation will scrutinise the government’s actions and intends to seek an emergency court order to stop Norway from taking any part in the US war. Behind this unusual step is disappointment over Norway’s showing more loyalty to the United States than dedication to the rule of international law.

The fundamental purpose of the United Nations organisation is set out clearly in the first four words of the UN Charter: ”To maintain international peace”. All member states have a duty to actively defend the organisation and insist that the US must show respect for legal obligations and act as a loyal member nation.

Most nations seem to hold that a new resolution by the Security Council, authorising an armed attack in express language will make a war legitimate. In our view there is no likelihood that Iraq will attack a neighbour state and an attack against the US is unthinkable. Therefore the legal conditions for military action articulated in Article 42 are not present. In the laws and customs of warfare, the first rule is that war is prohibited.

While Germany, France, China and Russia are right in holding that the earlier UN resolution, of last November (Security Council Res. 1441), is no basis for war, they should also make it clear that there is presently no basis for a new resolution to go to war. Should weapons be found in Iraq, there is a case for removal, not a cause for war, says Haakon Helle, legal counsel for the Norwegian peace groups.

Helle points to the fact that the Security Council is the only body which can legally decide to use military force. The sole exception is the right to self-defence ”if an armed attack occurs” and then only until the Security Council can deal with the situation.

The strong prohibition against power between nations has taken centuries to establish. The purpose of the UN is to avoid wars, and the power to veto military action is an intentional component of its design. No state can claim a right to attack because it finds that the Security Council has proved unable to act.

The letter from the peace movement is important also as a warning of possible criminal liability for members of government if Norway should join the US in an illegal war against Iraq. For US leaders to require Saddam to prove his innocence (non-possession of weapons) is an impossible demand and neglects basic ideas of civilised justice, says law professor Stale Eskeland, an expert on war crimes and international criminal law and adviser to the peace groups.

Extending the right of self-defence to allow ”preemptive attack” would set the struggle for a civilised world order 70-80 years back, Eskeland says. In 1945 the United States played a pioneering role in pushing for the establishment of the UN itself and in prosecuting war crimes in Nuremberg and Tokyo. It would be sad if the US should now take the lead in destroying this proud legacy.

US arguments for a war against Iraq carry little credibility given the fact that the US and UK co-operated closely with Saddam and willingly supplied the weapons they now wish to remove. Thus disarmament is an unconvincing cover for their actual interests, oil.

Back in 1997 then oil executives Dick Cheney, Donald Rumsfeld, and others who became key players in the Bush administration formed a lobby group, declaring, ”We must be prepared to use force to protect our vital interest in the Gulf — and if necessary remove Saddam from power.”

A notice of legal action was served upon the Prime Ministers of Britain and Canada last week, warning government officials to respect the 1998 Rome Treaty or face prosecution in the Hague before the new International Criminal Court, in operation since July 2002.

A statement by Phil Shiner, a UK lawyer, and Michael Mandel, a Canadian Lawyer made the situation clear: ”They are planning to kill Iraqi civilians. If they do this terrible thing, we are going to see to it they are prosecuted, each and every one of them for each and every crime they commit.”

While legal action is also under way in Australia, the Netherlands, and Germany, Bush may face his toughest challenge at home if anyone in Congress accepts an offer from international law professor Francis Boyle to assist in impeaching the president for unlawful threats. ”The Bush doctrine of pre-emptive warfare or pre-emptive attack in alleged self-defence was rejected soundly in 1945 in the Nuremberg Judgment, ” Boyle says. (END/COPYRIGHT IPS)